Every lawyer who's ever been in actual practice knows that there are two modes you can be in with a client: (1) Analysis, where you try to objectively give your client the most accurate statement of the law, usually to help determine a course of action; or (2) Advocacy, where you're now trying to defend a given position to the greatest extent possible, consistent with one's obligations not to actively misrepresent the law. It's part of the education of every new lawyer to start to learn how these modes differ and when you should be in one or the other. It's clear to me that these OLC lawyers -- who should always be in "analysis" mode -- were acting as advocates. It is simply incredible that lawyers of this experience and stature could have been confused about their mission, which leaves me with no conclusion other than they were operating in bad faith.
 

So the CIA promised not to slam the prisoner against the wall, put him in a box, and chain him upright in a standing position at the same moment that they are actually waterboarding him (never mind that it is impossible to do these at the same time), but they were free to (and did) inflict the full panoply of interrogation techniques on prisoners right before and right after waterboarding sessions. Maybe it's not considered to be a "combination" (or less of one) if the CIA uses one technique, then hands the subject off to a contractor for the next step, alternating back and forth in order to avoid continuity under any one agency.

Strangely, I haven't heard anything about contractors in the past week, except that they're still downrange (in country).
 

Too bad they won't be prosecuted.
 

Brian:

BT: "When drawing this conclusion, the OLC lawyers repeatedly utilized a standard lawyer’s rhetorical trick: turning “there is no evidence of combined effects” into “we have seen no evidence that the combined effect is harmful, so it’s okay.”"

Because the 2005 memo is a ex post facto evaluation, Bradbury appears to be relying upon the observations of the CIA medical and psych staff during the interrogations themselves. (p. 12-14). So it would be incorrect to argue that Bradbury had no evidence.

BT: "Picture it: held awake in an upright position in chains for days on end, kept naked, confined in a box for hours, repeatedly slapped in the face and abdomen, pounded against the wall, kept in very cold, kept in the dark, and waterboarded—all while being threatened by the interrogators that they’ll “do what it takes” to get the desired information. This is what the prisoners were subjected to (although only three were waterboarded, 183 times for one prisoner)."

Sounds unpleasant, but I do not see the "severe pain" necessary for torture. During the congressional debates over this statute, "severe pain" was described as that which was "excruciating and agonizing." Basically, along the lines of the NVA dislocating John McCain's shoulders and beating his broken leg. Obviously, congressional debates are hardly dispositive and this definition has been the subject of much debate. In 2004, DoJ backed off from this standard to muddy up the waters without providing an alternative standard.
 

As to contractors, see a reference in the op-ed by a senior FBI agent in today's NYT. This 2002 article is also telling. For instance:

"Abu Zubaida, who is believed to be the most important al Qaeda member in detention, was shot in the groin during his apprehension in Pakistan in March. National security officials suggested that Zubaida's painkillers were used selectively in the beginning of his captivity. He is now said to be cooperating, and his information has led to the apprehension of other al Qaeda members."

Vague use of "cooperating" and "information" with later reporting suggesting that it didn't take a "at any means necessary" to provide the useful information.

Not that there is a "when it works" exception to the limits at issue. The SC didn't say "well it seemed to work" when it c. 1940 denounced torturous interrogations.

As to Glenn's comments, spot on, and if you go to the OLC website, it underlines its mission and mission statement. Accord.
 

Can we please banish the canard that there is no clear definition of torture and forego this ridiculous exercise of trying to determine what exactly constitutes severe pain and what is merely "unpleasant."

For Bart and others, there is much case law from the circuit courts analyzing the Convention against Torture and what acts constitute torture. Not to mention case law from ECHR and other international bodies.

The fact that the first Bybee memo ignored that case law and attempted to define torture by relying on statutes pertaining to severe pain in the context of medical benefits alone is evidence of bad faith.
 

Sounds unpleasant, but I do not see the "severe pain" necessary for torture. This is not meant as a personal attack Bart, but have you considered the possibility that this is a personal failing on your part and not a legal failing? The above sentiment seems to undergird much of your logic on this subject, and I've noticed that you've stopped citing third-party rationales over the past few months, which tells me that maybe you've ceded your perspective to emotional responses.
 

Bart,

Severe pain is only one prong of the anti-torture statute. Here is the spcific language: “an act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering…upon another person within his custody or physical control.”

It strikes me as clear that waterboarding in isolation, and the combination of these techniques in an intense and repeated fashion, might quite easily violate the above standard.

Obviously, and as the Senate Report makes absolutely clear, many of the people involved--including the actual interrogators--worried that this line had indeed been crossed. (To be clear, there were not just worried about being prosecuted, they were worried that their actions were in fact committing torture, which is what exposed them to possible criminal prosecution.)

That tells you something, even if your intuition about the interrogation practices might be different.

Brian
 

Joe:

The FBI op-ed in the NYT is pathetic CYA in reaction to the memorandum's documentation of CIA success in gaining actionable intelligence that led to the capture of the Cole mastermind and then KSM, the mastermind of 9/11 an operations officer of al Qaeda.

Here is the sum total product of weeks of FBI interrogation according to the agent who performed that interrogation: "We discovered, for example, that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks. Abu Zubaydah also told us about Jose Padilla, the so-called dirty bomber."

In short, Zubaydah told FBI what they already knew and no actionable information on where to find KSM.

Then the agent has the hutzpah to claim with a straight face that: "There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics."

Really? Your weeks of standard interrogation obtained none of the intelligence that CIA obtained in a month or less.

The agent continues: "Defenders of these techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Shaikh Mohammed, and Mr. Padilla. This is false. The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods."

Notice the cute choice of words here. CIA never claimed that it obtained all the information leading to the capture of al-Shibh from Zubaydah. However, the FBI agent erects a straw man pretending that CIA claimed this and then knocks it down by noting that some of the information came from a more cooperative source than Zubaydah who actually answered FBI's questions.

Far more interesting is this concession: "One of the worst consequences of the use of these harsh techniques was that it reintroduced the so-called Chinese wall between the C.I.A. and F.B.I., similar to the communications obstacles that prevented us from working together to stop the 9/11 attacks. Because the bureau would not employ these problematic techniques, our agents who knew the most about the terrorists could have no part in the investigation. An F.B.I. colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him."

FBI has just admitted that it erected a Chinese Wall between itself and CIA concerning the CIA interrogation of Zuubaydah and had no knowledge of the particulars of that interrogation. Thus all the claims from anonymous FBI sources claiming personal knowledge of the failure of CIA interrogation of Zubaydah, which are repeatedly cited in Ron Suskind's "The One Percent Doctrine," the Dem media and here, are bullsh_t CYA to obscure the FBI failure in its interrogation of Zubaydah.

I have repeatedly warned you folks for months not to credit self interested anonymous FBI sources obviously engaged in a turf war with CIA, when multiple openly identified CIA sources were giving a contrary detailed description of CIA interrogation with the knowledge they could have been hauled in front of a grand jury or Congress and placed under oath.
 

Brian:

The definition of suffering is simply enduring pain over a period of time. If one is not enduring severe pain at any point, he cannot be enduring severe suffering.

I would suggest that CIA's request for OLC's legal blessing is a product of the fact that "severe pain" has no objective meaning and thus provides no guidance and the fact that CIA has been burned before by hypocritical politicians who support covert actions when the war is on and then later seek to prosecute CIA after the fact.

The Who in the aptly entitled "Won't Get Fooled Again:"

We'll be fighting in the streets
With our children at our feet
And the morals that they worship will be gone
And the men who spurred us on
Sit in judgment of all wrong
They decide and the shotgun sings the song.
 

This posting mentions the deaths of two detainees. An article from March 16, 2005, states, "At least 108 people have died in US custody in Iraq and Afghanistan, according to figures compiled by the Associated Press news agency. Most deaths were violent and some 25% are being investigated as possible abuse by US personnel, the agency said."

It seems reasonable to assume that many of these 108 were tortured to death -- and 108 is the figure from four years ago! So let's keep in mind that we're talking not only about torture, but about murder, and that Obama wants to let murderers off.
 

Milan said...

"For Bart and others, there is much case law from the circuit courts analyzing the Convention against Torture and what acts constitute torture. Not to mention case law from ECHR and other international bodies. "

Please cite the Circuit court cases defining the torture statute. I would love to read them. They apparently escaped OLC.

Foreign law is not legitimate precedent as to the meaning of our criminal statutes. The Torture Convention is only enforceable to the extent of the criminal statute.
 

Garth:

Like most Hersh reporting, this is misleading nonsense. It would be useful to consult a timeline:

In late 2003, the Abu Ghraib incidents occurred.

By November 2003, the Army got wind of the incidents and began a JAG investigation.

On January 16, 2004, CENTCOM announced in a press conference that it was investigating a case of soldiers abusing prisoners.

By late April, 60 Minutes broke the story. This is reportedly when the President first learned about this.

Maj Gen Taguba was tasked with drafting a report for the public.

On May 6, 2004, Taguba opined to Rumsfeld at a meeting that he considered shoving objects up a prisoner's rectum to be torture. No one apparently disputed that opinion.

From this statement, Hersh speculates without evidence that: "Everybody at the top, by the middle of January, knew."

This is Hersch's idea of reporting.
 

Bart,

It's pointless to try to persuade you that waterboarding is "torture" under the statute. Some things are beyond argument, and that's one of them. It has universally been considered torture for centuries (and training sessions that the prisoners are controlled do not change this fact).

If I recall correctly, a few days ago you agreed that 183 and 83 times was torture.

As for the other techniques, individually and in combination they undoubtedly can rise to the level of torture. For example, it seems to me that keeping a person awake upright in chains for a week qualifies.

Undoubtedly you disagree.

Brian
 

"I have repeatedly warned you folks for months not to credit self interested anonymous FBI sources obviously engaged in a turf war with CIA, ..."

"I have repeatedly warned you folks for months not to credit self interested anonymous CIA sources obviously engaged in a turf war with FBI,..." ... not to mention those who might be criminally culpable (unlike the FBI) who have every reason to slant anything they can to their advantage in order to avoid prosecution for their crimes. Cheney is exhibit number one, of course. And the recent persiflage about how interrogating KSM foiled the Library Towers plot is similarly dishonest....

Cheers,
 

Prof. Tamanaha:

As for the other techniques, individually and in combination they undoubtedly can rise to the level of torture. For example, it seems to me that keeping a person awake upright in chains for a week qualifies.

The torture statute (18 USC § 2340):

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
[...]
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;...
Sleep deprivation is intended to do precisely that. And that, carried out for a week, is "prolonged mental harm" by any sapient standard.

I have personal experience with narcoleptics, who cannpt sleep. They suffer hallucinations, depression, manifold disturbances and personality changes. It's a horrible affliction, untreated. It is almost an exact analogue of forcible administration of psychotropic drugs.

Of course, it is precisely this effect that is sought by the torturers in inflicting such.

Cheers,
 

The definition of suffering is simply enduring pain over a period of timeThe Torture Act prohibits infliction of severe pain OR suffering. Bart would have us violate a fundamental rule of statutory construction, namely that one does not treat words as meaningless or superfluous. Bart knows this rule, but disregards it in bad faith.

I am going to start calling the rug in my house the "bart."
 

Bart -

Look at 8 C.F.R. sec. 208.16 which allows for withholding of removal of aliens to their countries of origin under the Convention Against Torture. There is ample case law interpreting the meaning of "torture" in this context. Bybee/Yoo ignored this case law. Why?

As for your claim about "foreign law", first see Paquete Habana, and second, foreign courts interpretations of treaties are often regarded as useful by even those who generally have no interest in customary international law.
 

Professor Tamanaha:

Still breathlessly awaiting your forthcoming post in which you will argue that the OLC lawyers were the critical players in the entire "torture" enterprise. Then, after all of that, maybe you can tell us what you will do when Obama's DOJ declines to prosecute any OLC lawyers as well? Recall that it was not so long ago you had "no stomach for pursuing criminal actions against the Bush Administration. A criminal investigation into these matters strikes me as equivalent to walking to the lip of a volcanic crater ominously frothing with lava."
 

Brian Tamanaha said...

"It's pointless to try to persuade you that waterboarding is "torture" under the statute."

And vis versa. I have largely stopped trying to argue the point and am instead focusing my posts to rebutting incorrect claims about the memos and the interrogation.

BT: "Bart, if I recall correctly, a few days ago you agreed that 183 and 83 times was torture."

Your memory fails you in this case. I admitted the obvious that the SERE defense offered in the Bybee memo would not apply to situations where CIA exceeded the scope of SERE training.

Brian, I suspect that this is going to end one of two ways: (1) Obama drags his feet until his base stops calling for witch hunt investigations/prosecutions of the Bush Administration or (2) Obama gives his base what they want and we have an Ollie North type from CIA embarrassing a group of blowhard Dem politicians by unapologetically and proudly detailing all the information gained from this interrogations, the al Qaeda captured and the attacks prevented.

I believe that CIA is going to eventually leak this intelligence to defend itself from these witch hunts and provide al Qaeda with the intelligence bonanza I have been fearing. If that ends up being the case, by all means bring on the damn hearings!

I am confident that a solid majority of the American people do not share the views expressed here, will not shed a single tear for KSM & Co. and will not be particularly pleased at the hypocritical irresponsibility of the Dems on this issue - approving the interrogations during 30 classified briefings when the specter of attacks was very real and then turning on the men who successfully defended the country.

In fact, let's hold these hearings next Summer so the memory is fresh when the voters decide who they want running Congress in 2010.

I am willing to bet my party's electoral prospects on the outcome. Are you really prepared to do so? The last time the Dems tried similar stunts during the Carter Administration, we ended up with a generation long conservative backlash.
 

CIA never claimed that it obtained all the information leading to the capture of al-Shibh from Zubaydah.
Indeed, some of us have been watching the facile qualifiers in everything the CIA says, as part of its self-assessment. Of course, "information leading to" could be anything that an ouija board told you, including which hemisphere to look in ...

We now have a non-anonymous source, on the record, who has proper interrogation records of his own (as opposed to erased video tapes).

In other words, in a way, there *was* a control group in this Cheney-Bush torture experiment, at least for one high-value detainee, and it shows that the methods of the CIA aren't really the Queen's purse, afterall. (Not that we really needed another dataset to tell us this...)

Anyone who still believes that enhanced techniques are a sine qua non of intelligence gathering has to really think twice, on the facts.

Last, what is also striking from Soufan's is this:

(It’s worth noting that when reading between the lines of the newly released memos, it seems clear that it was contractors, not C.I.A. officers, who requested the use of these techniques.)We didn't just torture, we outsourced it.

Not only does this raise questions about the CIA's expertise, but one wonders just how much this complicates the issue of prosecution, if one were desired...
 

Bart:

Just ignore the personal insults and name-calling (per our host's request).
 

Milan:

Please provide cites to Circuit Court cases which you claim interpret the definition of torture given in the statute. I am not going to provide your legal support for you. I doubt that deportation cases where the alien claimed he would be tortured upon return provide anything close to an analogous fact pattern to the CIA/SERE techniques. The probable countries of origin in those cases practice real "excruciating and agonizing" pain torture.
 

"In fact, let's hold these hearings next Summer so the memory is fresh when the voters decide who they want running Congress in 2010.

Indeed, yes, let's decide on matters of criminal law with an eye out for only the (presumed) maximum partisan advantage that might be gained. It's the Rethuglican way....

Cheers,
 

Maybe we can finally get all 43 pages of that "classified" Red Cross report that Danner cherry picked from to start this snowball rolling too?
 

Bart:

DNFTT.

Cheers,
 

On April 23, 2009 at 2:31 PM Milan wrote:

"Can we please banish the canard that there is no clear definition of torture and forego this ridiculous exercise of trying to determine what exactly constitutes severe pain and what is merely 'unpleasant.'"

-*-*-*-*-*-*-*

Milan, you're so right. The torture statute gives a broad and all-encompassing definition for torture, rather than enumerating a list of practices constituting torture. The torture definition generally follows the style used for criminal homicide definitions. If statutory definitions for these crimes used long lists of the behaviors amounting to torture or homicide, clever torturers and murders would simply dream up techniques that were not specifically enumerated as prohibited.

Awhile back, when some politicians in Congress were calling for a law to outlaw waterboarding, I realized this kind of law would have two effects: (1) it would imply waterboarding had been legal prior to passage of such an unnecessary law, and (2) it would start a list of prohibited torture techniques that would always be incomplete.

Some torture ghoul would end up trying to invent torture by microwave or torture by nanotechnology, etc.
 

Anderson said...

"The definition of suffering is simply enduring pain over a period of timeThe Torture Act prohibits infliction of severe pain OR suffering. Bart would have us violate a fundamental rule of statutory construction, namely that one does not treat words as meaningless or superfluous. Bart knows this rule, but disregards it in bad faith."

Actually, courts interpret the disjunctive to mean the conjunctive and vis versa all the time to make sense of a passage. However, this entire line of argument is irrelevant as it does not matter whether the statute reads "severe pain or suffering" or "severe pain and suffering." The end result will be the same.

The prohibition of severe pain refers to pain of any duration, except as modified by the further definition of mental pain requiring a prolonged period.

The prohibition of suffering refers to enduring pain over a period of time.

My point, which you studiously ignored, is that you cannot suffer severe pain over a period of time (suffering) when you did not experience severe pain in the first instance.

This truism is not affected by whether the statute requires the imposition of both pain and suffering or either pain or suffering.
 

Didn't Obama, just today, change his mind on any "Truth" Commission? We'll see if Pelosi keeps at it.
 

What "combination of techniques[sic]" led to the deaths -- characterized as "homicides" in DOD autopsy reports -- of these captives?

DOD 003146 - DOD003155; DOD003299

Multiple blunt force injuries. Abrasion in upper right forehead. Abrasion on right lower forehead above eyebrow. Multiple contusions on right cheek and lower nose, left upper forehead, back of head. Abrasions on chest, lower costal margin. Contusions on arm, elbow, forearm, wrist, upper inner arm, groin, inner thigh, right back of knee and calf, left calf, left lower leg. Cause of death was pulmonary embolism due to blunt force injuries.


DOD003156 - DOD 003163; DOD 003296 - 003297

Detainee was found unresponsive restrained in his cell. Death was due to blunt force injuries to lower extremities complicating coronary artery disease.Contusions and abrasions on forehead, nose, head, behind ear, neck, abdomen, buttock, elbow, thigh, knee, foot, toe, hemorrhage on rib area and leg. Detainee died of blunt force injuries to lower extremities, complicating underlying coronary artery disease. The blunt force injuries to the legs resulted in extensive muscle damage, muscle necrosis and rhabomyolysis. Electrolyte disturbances primarily hyperkalemia (elevated blood potassium level) and metabolic acidosis can occur within hours of muscle damage. Massive sodium and water shifts occur, resulting in hypovolemic shock and casodilatation and later, acute renal failure. The decedent's underlying coronary artery disease would compromise his ability to tolerate the electrolyte and fluid abnormalities, and his underlying malnutrition and likely dehydration would further exacerbate the effects of the muscle damage. The manner of death is homicide.


DOD003164 - DOD003170; DOD 003301

Died as a result of asphyxia (lack of oxygen to the brain) due to strangulation as evidenced by the recently fractured hyoid bone in the neck and soft tissue hemorrhage extending downward to the level of the right thyroid cartilage. Autopsy reveleaved bone fracture, rib fractures, contusions in mid abdomen, back and buttocks extending to the left flank, abrasions, lateral buttocks. Contusions, back of legs and knees; abrasions on knees, left fingers and encircling to left wrist. Lacerations and superficial cuts, right 4th and 5th fingers. Also, blunt force injuries, predominatnly recent contusions (bruises) on the torso and lower extremities. Abrasions on left wrist are consistent with use of restraints. No evidence of defense injuries or natural disease. Manner of death is homicide. DOD 003329 refers to this case as "strangulation, found outside isolation unit."


DOD 003212 - DOD003219; DOD 003304

Iraqi National male was captured by Navy Seal Team #7 and resisted aprehension. External injuries including multiple contusions are consistent with injuries sustained during apprehension. Fractures of the ribs and a contusion of the left lung imply significant blunt force injuries of the thorax and likely resulted in impaired respiration. Ligature marks of the wrists and ankles. Remote gunshot would of torso. No significant natural diseases identified. According to investigating agents, during interrogation of the detainee, a hood made of synthetic material was placed over the head and neck of the detainee. He died while detained at Abu Ghraib prison in Iraq. Cause of death: Blunt force injuries complicated by compromised respiration. Manner of Death: Homicide. DOD 003329 refers to this case as "1 blunt force trauma and choking; died during interrogation." DOD 003325 refers to this case with the notation "Q[uestioned] by OGA [Other Governmental Agency - non-military, often refers to the CIA] and NSWT [Navy Seals] died during interrogation."


DOD 003220 - DOD 003227; DOD003305

Male detainee died while in U.S. custody. The details surrounding the circumstances at the time of death are classified. Cause of death: Asphyxia due to smothering and chest compression. Manner of Death: Homicide. Significant findings of the autopsy included rib fractures and numerous bruises, some of which were patterned due to impacts with a blunt object. DOD 003329 refers to this case as "1 blunt force trauma and choking; died during interrogation." DOD 003325 refers to this case with note "Q[uestioned] by MI [Military Intelligence], died during interrogation."


DOD003171 - DOD3177; DOD003298

Death caused by the multiple blunt force injuries of the lower torso and legs complicated by rhabdommyolisis (release of toxic byproducs into the system due to destruction of muscle). Manner of death is homicide. Decedent was not under the pharmacologic effect of drugs or alcohol at the time of death.This last report may well describe the death of an Afghan taxi driver named "Diliwar," whose life and "murder in custody" was featured in the 2007 documentary, Taxi to the Dark Side.

More about the film and Diliwar's death in, "Down a Dark Road," by Richard Leiby.

More DOD autopsy reports here.
 

manonfyre:

Harry S Truman dropped atom bombs killing 200,000 "innocent" civilians. You were saying something about the lesser-included offence of "torture"?
 

I periodically make the plea, and I make it again: just ignore the likes of Bart & Charles. They have no interest in meaningful conversation or debate about the issues. I really love reading Balkinization. Several of the commenters here also have interesting or insightful things to contribute. But the comments inexorably turn into a parade of inanity and banality as commenters respond to the same, tired illogic and unreason of the Barts.

It is so old.
 

therandomthinkery:

You think that "torture" is worse than murder then? Too bad you didn't contribute to the last Tamanaha thread where I got him to admit that there were more sources than just self-reporting by the CIA.
 

P.S. "illogic and unreason" might be viewed as personal insults and name-calling which our gracious host asked us not to engage in.
 

The torture statute gives a broad and all-encompassing definition for torture, rather than enumerating a list of practices constituting torture. The torture definition generally follows the style used for criminal homicide definitions. If statutory definitions for these crimes used long lists of the behaviors amounting to torture or homicide, clever torturers and murders would simply dream up techniques that were not specifically enumerated as prohibited. . . .

# posted by Nick Jackson :

Still, I think it would be consructive to specifically prohibit the torture that is "Bart" DePalma's intellectual dishonesty.
 

Charles said...

P.S. "illogic and unreason" might be viewed as personal insults and name-calling which our gracious host asked us not to engage in.
_____

On the other hand, there is the adult reality of nuance, and honest distinction.

If a person is objectively (and even repeatedly) proven to be a liar, then calling that person a liar is a statement of fact -- not a personal attack.

You're doubtless free to exercise your usual intellectual dishonesty by, in this instance, falsely taking that as a personal attack, rather than a statement of fact based upon the overwhelming evidence provided by none other than yourself.
 

Whether the name-calling in question is true or not, Professor Tamanaha has asked that we do not engage in it.
 

Maybe we can finally get all 43 pages of that "classified" Red Cross report that Danner cherry picked from to start this snowball rolling too?

# posted by Charles

As you implicitly admit, you've not seen "all 43 pages," therefore cannot -- except by dishonesty, and personal attack against Danner -- determine that it was "cherry picked".
 

Eric:

Strangely, I haven't heard anything about contractors in the past week, except that they're still downrange (in country).Received Center for Constitutional Rights Spring '09 newsletter (not yet available online) this week, updating Saleh v. Titan [appeals pending -- oral arguments heard in February], Al Shimari v. CACI International, and Al-Quraishi v. Nakhla and L-3 Services, Inc. [oral arguments heard in March].

CCR factsheet available here.

For more background, google: CACI, Titan, Steven "Big Steve" Stefanowicz, or John Israel.
 

Nick Jackson:

The torture statute gives a broad and all-encompassing definition for torture, rather than enumerating a list of practices constituting torture. The torture definition generally follows the style used for criminal homicide definitions. If statutory definitions for these crimes used long lists of the behaviors amounting to torture or homicide, clever torturers and murders would simply dream up techniques that were not specifically enumerated as prohibited....

Ummm ... waiddaminnit ... that's exactly what they did try to do. Rather that circumvent explicit language not present in the statute, they shot the arrow and drew a bulls-eye around it; they made up their own specific definitions and thresholds of torture, carefully drawn so that what they wanted to do was outside (e.g., Yoo's "pain equivalent to that accompanying organ failure or death").

They of course ignored the essential aspect of torture; to be effective it must be intolerable. They just had to make sure that intolerable pain or suffering wasn't "severe" pain or suffering.

Cheers,
 

Bart:

Actually, courts interpret the disjunctive to mean the conjunctive and vis versa all the time to make sense of a passage....Not if the law as written makes perfect sense that way; in such a case, there's no need for "legislating from the bench" to rewrite it, much as "Bart" would seem to want this in the present instance.

Cheers,
 

Arne:

Yoo and Bybee DID try to redefine torture narrowly and then test every proposed CIA torture technique against their narrow definition. Nobody elected them as legislators authorized to amend or pass laws. Nobody knows whether there was a quorum over at that secret legislature in the Office of Legal Counsel and nobody knows whether the amended torture definition was passed by a majority vote. The new definition for torture was kept secret from the public from several years.

I wouldn't call John Yoo or Jay Bybee "strict constructionists." I wouldn't guess they support the rule of law. And I don't think their kind of law is the kind practiced in democratic forms of government.

In fact, if a president has the authority to simply rescind torture, as President Obama just did, a future president can sign an executive order restoring torture. I used to think Congress passed the laws and the President carried them out.

Who knows, maybe historians will look back on this time and call it the reign of the Caesars. The first Caesar, Caesar Bush, was followed by Caesar Obama, who was succeeded by ...

That's where we are headed if U.S. Attorney General Eric Holder doesn't appoint an independent prosecutor pretty soon to investigate the Bush-era torture policies.
 

Remember Bill Clinton's famous pre-blue dress whopper that" I never had sexual relations with that woman, Miss Lewinsky."?

Dem House Speaker Nancy Pelosi had a similar moment yesterday concerning whether the CIA briefed her way back in 2002 about its interrogation program that Pelosi now calls torture and about which she is demanding to conduct witch hunts... er, hearings on the Bush Administration. Watch her dissemble hereThe CIA briefers give a far different story. Back in 2007, the Washington Post reported:

In September 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA's overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.

Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.

"The briefer was specifically asked if the methods were tough enough," said a U.S. official who witnessed the exchange.Congressional leaders from both parties would later seize on waterboarding as a symbol of the worst excesses of the Bush administration's counterterrorism effort...

Yet long before "waterboarding" entered the public discourse, the CIA gave key legislative overseers about 30 private briefings, some of which included descriptions of that technique and other harsh interrogation methods, according to interviews with multiple U.S. officials with firsthand knowledge.

With one known exception, no formal objections were raised by the lawmakers briefed about the harsh methods during the two years in which waterboarding was employed, from 2002 to 2003, said Democrats and Republicans with direct knowledge of the matter...

I am sure you critics of the CIA "torture" will be out front on this one and demand that Pelosi testify under oath as to what she knew and her response to CIA as you demanded with Scooter Libby.

After all, we cannot have enablers of torture offering bald faced lies to the American people concealing role in these war crimes.
 

Nick Jackson:

Yoo and Bybee DID try to redefine torture narrowly and then test every proposed CIA torture technique against their narrow definition....

I know they did. That's what I was trying to get at. Rather than weasel around specific prohibitions already existing, they made up their own list of what was specifically prohibited, carefully ensuring that what they were doing wasn't within this list (at least according to them). This is what's commonly known in the business as "legislating from the Chamber of Horrors", something that finds more approval than "legislating from the bench" with the 'strict constructionists' for some reason....

... Nobody elected them as legislators authorized to amend or pass laws. Nobody knows whether there was a quorum over at that secret legislature in the Office of Legal Counsel and nobody knows whether the amended torture definition was passed by a majority vote. The new definition for torture was kept secret from the public from several years.

It was kept secret because they knew that their 'legal analysis' wouldn't stand up to scrutiny. At best, it was intended to be a plausible 'good faith' cover and defence against prosecution ... at least until uncovered and shot down or reversed. Once ti saw the light of day and was repudiated, they would no longer any such efficacy. IOW, fundamentally dishonest ... and the dishonesty is evidence of the "guilty mind" requisite.

Cheers,
 

FWIW, I'd point out that neither assent nor disapproval by the Gang of Eight has any legal effect on the status of the torture statute.

One might make a case for criminal negligence or even abetting or conspiracy to commit torture ... and if that is the case, then such prosecutions must ensue as well, and I'm all for them. We can't have high elected officials contributing to or abetting criminal activity, regardless of party affiliation, if this is indeed what happened.

But if such is the case, then surely there must be prosecutions for those who did the deeds and those that gave the orders, not just those that cheered from the sidelines.

Let the investigation begin. Now.

Cheers,
 

arne:

There were no substantive crimes here. I am talking about giving the Dems a taste of the time honored Dem practice of setting perjury traps. Let's start your investigation with turning the painfully obvious liar Pelosi into a felon perjurer.
 

Nick,

Your comments hit on the reason I continue to focus on the actions of the lawyers.

Anyone who believes in the rule of law must object to what they did because their office represented the law. They were not just lawyers engaged in advocacy for a client. Their opinion had immediate consequences.

They abused the trust of their office, and in so doing they facilitated the violation of a federal law. They took an oath to uphold the law but they perverted and undermined it.

This isn't only about torture--it's about commitment to the law.

Cynics who believe that everything is politics will think this a naive position, but they are not as sophisticated as they think.

All it takes to understand the value of the rule of law is to examine the plight of people in the many societies around the world where government officials do not respect the law.

That is what the OLC lawyers failed to appreciate. When defending American (in their minds), they betrayed the ultimate values of our society.

Brian
 

i'm a little bit surprised here at mr. depalma's claim that nancy pelosi committed perjury. as we all know, perjury is lying under oath. this is what scooter libby was prosecuted for -- lying under oath to the grand jury. nancy pelosi may have lied, may have dodged, may have shaded the truth, may have done a whole lot of things. to the best of my knowledge, and i may be wrong, but none of those were under oath. call it what you like, but it's not perjury.

as for other arguments, i find it a bit strange that there should be any argument over whether or not we should be investigating and, if appropriate, prosecuting those responsible or not for their involvement in possible torture. there is a simple question here. was a law violated? isn't that what an attorney general is supposed to investigate? from what i've seen thus far, all eric holder has committed to is investigating whether or not a law was violated. if so, he should prosecute. after all, this is the rule of law. this is what my conservative friends constantly tell me -- that those who violate the law should be prosecuted. if there have been no violations of law, there should be no prosecutions. if, however, there have been violations of law, let a jury decide.

finally, the other argument i hear constantly is that we need to allow the cia, the military, etc. to use harsh interrogation methods, which is the in vogue term for torture; otherwise we will be attacked again or we will lose the war on terror. to that, i wonder just how it was that we managed to win both world wars, against enemies that hated us for our freedoms and would have stopped at nothing to defeat us, without resorting to torture, er, um, i mean harsh interrogation techniques.
 

Arne,

I've no problem prosecuting Democrats in Congress who assented to torture during their so-called "oversight" briefings. I have an old acquaintance who keeps arguing, tit-for-tat, if you say the Republicans did this bad thing, what about the Democrats who did this equally bad thing. This is about the law, not political parties.

Torture guts the Constitution. It hasn't been effectively repudiated simply by President Obama signing some executive orders. At a bare minimum the lawyers who wrote the torture memos need to serve time in prison. They knew they were conspiring in torture.

It's interesting how people acting like criminal defense lawyers try to explain away clearly written statutes and a growing mountain of evidence. Some of the specious arguments they make in the blogosphere would probably get them admonished by a judge in the court room.

The next time a president orders torture I want insubordination, followed by whistle-blowing, followed by impeachment and removal from office.
 

phg:

Read it again. Bart wants Pelosi in a perjury trap.
 

Brian,

What the lawyers did was to undermine the foundations for everything I studied in law school. I remember the distinction between the lawyer as an adviser and the lawyer as an advocate.

In the first place, The Office of Legal Counsel carries the limited assignment to advise that has been an Attorney General function since 1789. OLC lawyers are never supposed to act as advocates.

In the second place, in wrongfully acting as advocates, the OLC lawyers aided and abetted their clients in committing torture. They had an impermissible level of zeal for their clients. There is no question of both ethical and criminal violations.

Oh yes, and when the "gloves came off" as a result of that OLC legal "advice," detainees were tortured to death. All involved in the Bush torture programs as co-conspirators became liable for life sentences pursuant to the sentencing provisions of the federal torture statutes.

But the Bush lawyers knew better than anybody that they were in the wrong. Maybe the non-lawyers could be made to believe there were "loopholes" in the torture statutes, but the black letter law was right there for the OLC lawyers to read.
 

The torture statute gives a broad and all-encompassing definition for torture, rather than enumerating a list of practices constituting torture. The torture definition generally follows the style used for criminal homicide definitions
Berkley Water
 

Nick:

Then why isn't Obama / Holder prosecuting CIA agents / doctors who tortured?
 

Bill Maher's LATimes OpEd today titled "The GOP: divorced from reality" explains the actions/reactions of the ex Bush/Cheney enablers in their efforts to torture logic with their comments on this post.
 

Check out today's WaPo lead editorial "The Accountability Question: The right way to deal with torture's legacy." It is unusually long but fairly exhaustive, coming down to a Presidential Commission recommendation.
 

In an earlier post I advanced the hypothesis that the Obama Administration released the OLC Memoranda in the hope that that the drip, drip disclosure to the American people of just what had been done in their name would generate a degree of public revulsion that would prepare the way for the investigation that is the legal obligation of the USA.
I also suggested that the reason for the carefully worded assurances to CIA operatives was that the Administration had determined that if there were to be prosecutions, the targets would be the organ-grinders not the monkeys (or in this case the knuckledraggers).

Support for that hypothesis comes from two reports, the first in the NYT and the second in the Wa-Po.

The NYT article Obama Resisting Push for Interrogation Panel reports that the Administration is resisting the setting up of any kind of independent commission of enquiry at this stage. It wishes the ordinary oversight committees to investigate.

The clue as to why may be that Speaker Pelosi's idea of some kind of blue ribbon truth commission would involve the question of giving immunity to potential witnesses. I suggest the Administration does not wish to have the Congress immunise witnesses - better that they go before ordinary oversight committees and take the 5th if they are so advised.

The Wa-Po article In Obama's Inner Circle, Debate Over Memos' Release Was Intense is said to be based on interviews with Administration officials on anonymity terms.

It asserts that in the debate over release of the Memoranda, those against were 5 CIA directors, including Panetta, while those for were Attorney General Eric H. Holder Jr., Director of National Intelligence Dennis C. Blair and White House counsel Gregory B. Craig. Defence Secretary Gates came round to the release side on the basis that CIA operatives would not be prosecuted and because the information would inevitably get into the public domain anyhow. Admiral Mullen sided with Secretary Gates.

But what is of more interest are the disclosures relating to what happened during the transition. It is asserted that during the transition, the President elect sent a team to Langley to be briefed comprising present White House Counsel Craig, General Jones now his National Security Adviser, foreign policy adviser Denis McDonough; former senators David L. Boren (D-Okla.) and Chuck Hagel (R-Neb.); and former CIA general counsel Jeffrey H. Smith.

"Boren and Smith said the group was not convinced that whatever useful intelligence had been gleaned from the programs warranted keeping them as an option.

"They said that they had produced valuable intelligence," Smith said. "We took them at their word." But the group's consensus was that "whatever utility it had at the outset...the secret prisons and enhanced techniques were no longer playing a useful role -- the costs outweighed the gains." He said those costs included obvious damage to the nation's values and identity, and problems with U.S. allies that strongly opposed the use of such methods.

Boren, who chaired the Senate intelligence committee from 1987 to 1993 and is now president of the University of Oklahoma, said that attending the briefings was "one of the most deeply disturbing experiences I have had" and that "I wanted to take a bath when I heard it. I was ashamed of it." He said he concluded that "fear was used to justify the use of techniques that violate our values and weaken our intelligence" and that the agency did not prove those methods "are particularly effective at getting the truth."

One of those present said that when asked, the CIA officers acknowledged that some foreign intelligence agencies had refused, for example, to share information about the location of terrorism suspects for fear of becoming implicated in any eventual torture of those suspects. Sources said that Jones shared these concerns and that, as a former military officer, he worried that any use of harsh interrogations by the United States could make it more likely that American soldiers in captivity would be subjected to similar tactics."The difficulty of foreign intelligence services is emphasised by what has transpired in the case of the ex-Guantanamo Bay guest of the USA - Binyam Mohamed, who is now
back in the UK. There have been very significant proceedings in the UK Administrative Court under the title, The Queen on the application of Binyam Mohamed -v- Secretary of State for Foreign & Commonwealth Affairs. There have been several judgments, some "open" and some "closed" because the Court considered unexpurgated classified material in closed sessions.

The open Judgments may be found on-line:
Open Judgment of 21 Aug 2008;

Open Judgment of 22 Oct 2008;

Open Judgment of 04 Feb 2009 and

Open Judgment of 23 March 2009.

These Judgments will repay careful perusal. Even the open judgments are scathing about the conduct of US government officials in terms that in my 40 years of litigation practiceI have rarely seen used by Judges of this seniority about the conduct of any friendly foreign government, let alone the UK's most important ally.

On the basis of 42 documents the Court saw in unredacted form the Court concluded that there was a good arguable case that BM had been tortured and/or subjected to inhuman/degrading treatment at the instance of the US auhorities and that British intelligence officials had a case to answer on complicity.The US State Department threatened to reconsider its intelligence co-operation with the UK if the Court ordered disclosure.

The US Authorities made what the UK Court plainly considered a scandalous plea bargain proposal.

Finally, as pointed out previously, the UK Attorney General is now investigating with a view to considering whether UK intelligence officers should face charges for complicity in the illegal acts of US officials.

The position of the UK Attorney-General in this regard was thus described by the Court in the judgment:-

"96. Although the Attorney General is a Minister of the Crown and thus a member of the Executive branch of the state whose officials are alleged to have facilitated cruel, inhuman or degrading treatment or torture, the Attorney General continues, at present, to have a unique constitutional role as an independent guardian of the public interest in relation to breaches of the criminal law. The Attorney General acts in the interests of justice and not in the role of a member of the Executive branch of the State when
determining the conduct of an investigation and whether any prosecution should be brought. The Attorney General is under a duty to take his or her own independent decision on such matters....I think it is significant to note that the Obama Administration seems to be proceeding on the footing that the US Attorney-General has an analagous function to his British counterpart.

Given the very clear indications from very senior UK judges with clear citations to authority that an arguable case is established that at least one detainee has been subjected to torture and/or inhuman and degrading treatment - it seems to me that the threshold for the duty to investigate has clearly already been crossed.

Incidentally, there is a further judgment pending in the BM case on an application to release some paragraphs of the closed judgment.

Given that some UK intelligence officials are already facing enquiries with a view to prosecution for complicity in US official misconduct, the concern expressed by the Obama transition team dealing with the matter that the issue was putting intelligence co-operation with allies at risk was plainly genuine and warranted.

In relation to the post from GlennNYC about the OLC memoranda demonstrating that the authors were in "advocacy mode" rather than "analysis mode", Professor Adler over at VC agrees. In an April 23 post, Professor Adler writes:-

"Insofar as some of the Bush Administration national security memoranda were faulty or one-sided, I believe this was due to departures from traditional OLC norms and procedures, including the walling-off of those who drafted such memoranda from the rest of OLC (as well as from legal offices in other parts of the government that may have reached contrary conclusions)....A well-functioning OLC is not an advocacy shop -- as opposed to, say, the Solicitor General's office or the Office of Legal Policy. Rather, it plays the role of counselor, seeking to provide the executive branch with the best, objective legal advice."One might, however, say that "faulty or one-sided" is an euphemism on a par with describing torture or inhuman and degrading treatment as "enhanced interrogation".

In relation to Professor Tamanaha's post at 10.49, I suggest that the crux of the matter is this: the OLC lawyers were being asked to express their opinions in the context of the public law obligations of the United States of America. In that sense their obligation was to the United States - not to the particular administration or its officials. Officials needed clear, objective and authoritative and uneqivocal advice as to the legal obligations of the state and its officials. They did not get such advice.

"Peter's Corollary" states that "in time, every post tends to be occupied by an employee who is incompetent to carry out his duties" and adds that "work is accomplished by those employees who have not yet reached their level of incompetence".

Since the OLC are popularly considered to be "the Attorney-General's lawyers" it would not have taken very much competence to outclass AG Alberto Gonzalez.

But in the Bush Administration the practice of only recruiting "yes men" who could be relied upon to come up with the answers the Administration wished to receive seems to have extended just as much to its choice of lawyers in the OLC as it did to its choices to staff positions in the EPA.

That could be said to have resulted in a situation where the incompetent were advising the incompetent to come up with the answer the pro-torturers wanted. I would place bets on the prime mover in that regard, being the the "Darth Vader" of the Bush Administration - Vice President Cheney.
 

Brian Tamanaha --

"They abused the trust of their
office, and in so doing they facilitated the violation of a federal law. They took an oath to uphold the law but they perverted and undermined it.

"This isn't only about torture--it's about commitment to the law.

"Cynics who believe that everything is politics will think this a naive position, but they are not as sophisticated as they think."

Agreed. And this is a view that more-patriotic-than-thou "Bart" DePalma should hail. Here's a constitutional expert and Founder who asserted the same point, and the same distinction between politics, on one hand, and on the other, law:

"A system of laws, and not of men." -- John Adams.

"Bart," being more-patriotic-than-thou, cannot therefore resist appreciating the fact that John Adams didn't allow politics to subvert his judgment on that point. When no one else would, because of inobjective hostility and fear of being unpopular, John Adams undertook the defense of the British soldiers involved in the so-called "Boston Masscre" -- against the abuse and threats of the "revolutionaries" -- including his cousin Sam -- who were otherwise so busy screaming righteously about law and justice.

He didn't do it because he was sympathetic to the British -- in fact he detested them. But he did hold that no person charged with a crime should want for a competent defense. As he put it:

"Justice and law are to be ABOVE politics."

We all know, of course, that "Bart," being more-patriotic-than-thou, will, for those reasons alone, not only genuflect in the direction of John Adams, but will prostrate himself in honor of that foundational keel of the ship called democracy.

After all, being a lawyer, more-patriotic-than-thou "Bart" knows that without the rule of law there cannot be democracy. And that there can be no exceptions made despite those who always put politics before tthe rule of law and the health and survival of their country.
 

Charles --

"phg:

"Read it again. Bart wants Pelosi in a perjury trap."

Of course: Because more-patriotic-than-thou "Bart" doesn't believe in fair-play, let alone rule of law.

Like you, Charles, he's an America-hater.

By contrast:

If the truth shall set one free, and the US is about freedom, then the US is about telling the truth -- foremost about and to ITSELF.
 

*Dept. of Timely Reminders*

"Should any American soldier be so base and infamous as to injure any [prisoner]. . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause... for by such conduct they bring shame, disgrace and ruin to themselves and their country."

- George Washington, charge to the Northern Expeditionary Force, Sept. 14, 1775
 

Postcript:-

The UK Administrative Court has weighed in again on the disclosure issue:
UK High Court demands U.S. torture documentsGiven that this is a news report it may not be quite accurate - it certainly gets the title of the Judge wrong - but it certainly cannot have been a comfortable hearing for the Foreign Office since I understand they had to disclose a further 13 documents over and above the 43 the Court has already seen and apologise for with-holding them. Apparently, the Court has given them a week to try to get US consent to disclosure!

Also, the ACLU has announced that the DoD has agreed to release significant numbers of abuse photographs - not just from Abu Ghraib but from elsewhere. Since a picture equals a thousand words, this should add considerably to the debate.

The pressures for a proper criminal investigation are certainly building up and I suppose they will be increasingly hard to resist.
 

To complete my morning trilogy of Internet surfing, take a look at:

http://writ.news.findlaw.com/dorf/20090422.html

"Why President Obama Should Consider Pardoning those Who Designed, Authorized, and Carried Out the Bush Policy of Abusing Detainees"
By MICHAEL C. DORF

Don't be put off by the pardoning. Read it.
 

As to the rule of law, how about the fact that of our two parties, it seems but a fraction of one of them truly believes in it?

BTW, I wonder how Marty Lederman thinks about reliance on the OLC these days. Or, if our hosts are still so worried about Yoo's university having a full-fledged investigation of his past acts.
 

Brian Tamanaha said...

They abused the trust of their office, and in so doing they facilitated the violation of a federal law.What has been missing in the series of posts on these memos at Balkinization is any real discussion of why critics contend that OLC's legal analysis of law is in error, nevertheless in contradiction to some settled area of law.

Was OLC's analysis of the text of the statute in error? How?

Did OLC's analysis ignore United States court precedent interpreting the Torture Statute or an analogous statute to arrive at a contrary position?

(Foreign judicial interpretations of their law have no place in establishing the meaning of United States criminal law imposing criminal sanctions on our citizens, so I am not going down that rabbit hole.)

The fact that you or I may have a different interpretation of the law does not mean that OLC was wrong in their interpretation.

Indeed, the fact that intelligent lawyers acting in good faith here and elsewhere all draw different lines as to what is and is not prohibited is an indictment of the Torture Statute itself. A criminal statute from which an average person - nevertheless thousands of attorneys - cannot determine what is prohibited should be considered void for vagueness.

If I would criticize OLC for anything, it is being intellectually dishonest and pretending that they are objectively applying a statute whose terms are impossible to objectively apply. OLC's only concession in this area was a solitary footnote in a previous memo noting that medical science cannot measure pain to determine what is "severe."

The dirty secret OLC and nearly every other attorney here (except for Will Levi) is dancing around is that the torture statute was intentionally kept vague to permit the President flexibility in interrogation. What upset Goldsmith about Yoo's memo was the fact that Yoo attempted to make clear that limits of the Torture statute. Goldsmith wanted to muddy up the water again to preserve the illusions of those who were made uncomfortable by Yoo's attempt at clarity.

If you are going to indict OLC for "subverting" the law, you are going to need far better grounds than the fact that you personally disagree with OLC and react in personal horror imagining yourself in KSM's shoes undergoing CIA interrogation.
 

I noted earlier that I believed that a solid majority of the voters did not share the views being expressed in support of these "torture" witch hunts. Rasmussen's recent polling confirms this observation:

> 58% believe the Obama administration’s recent release of CIA memos about the harsh interrogation methods used on terrorism suspects endangers the national security of the United States, while 28% believe the release of the memos helps America’s image abroad.

"Seventy-seven percent (77%) of all voters say they have followed news reports about the release of the CIA memos detailing Bush administration interrogation techniques at least somewhat closely. Only six percent (6%) say they have not followed the reports at all."

>By identical margins, 58% oppose further investigations into how the Bush administration treated terrorism suspects, while 28% support such investigations.

"Democrats are evenly divided over whether further investigation is necessary. Seventy-seven percent (77%) of Republicans and 62% of voters not affiliated with either major party are against more investigating."

> "46% of voters disagree with Obama’s decision to close the prison camp for terrorism suspects at the Guantanamo Naval Base in Cuba, while 36% agree with the president’s action. Support for the decision has fallen since the president announced it in January."
 

I guess I’m confused. The torture statute says you can’t cause “severe mental pain or suffering,” and then defines it.


(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
Clearly sleep deprivation does (2)(B). Clearly waterboarding constitutes (2)(C). clearly “walling”, even if the wall is really soft, constitutes (2)(A). Insect box clearly does (2)(B). I don’t have a cite for it, so I could be wrong, but I could swear there was a story of US interrogators threatening to kill and/or rape a detainees children, clearly falling into (2)(D). the “threat” component of all of the definitions is what takes this from a “good faith” debate to malpractice. There is no question these men were threatened with all of these possibilities, even assuming they did not actually suffer severe pain. Since they were threatened with it (and after all, what is the purpose of any of these techniques, even “fake” drowning, if the victim does not believe he is in imminent danger of death or severe physical violence?), there has clearly been torture, as defined in the statute. Why are we still debating this? No attorney, in good faith, can ignore the statutory definition, containing the “threat of” as opposed to “actual” harm, making a debate over what constitutes “severe physical pain” academic and grotesque.
 

Because SERE training and medical studies are not necessarily "severe" either.
 

Nerp:

Clearly?

If the act itself does not inflict severe pain, how can the lesser of merely threatening that act inflict serve pain?

Think about it.
 

"Why are we still debating this?"

Others also wonder.

As Laura Penny wrote in her useful book on the subject:

"Bullshit distracts with exaggeration, omission, obfuscation, stock phrases, pretentious jargon, faux-folksiness, feigned ignorance, and sloganeering homilies."

Like when you step in it, it also can be hard to clean up after. Such is the point, probably.
 

That's right, Joe. You and Smith wouldn't "torture" even if it would prevent another 9/11.
 

That's right, Joe. You and Smith wouldn't "torture" even if it would prevent another 9/11.

# posted by Charles : 11:15 AMThey wouldn't, but I would. I'd start with you. How long do you think it would take me to get you to admit that you're a terrorist?
 

Mr. DePalma,
Clearly?

If the act itself does not inflict severe pain, how can the lesser of merely threatening that act inflict serve pain?

Think about it.
First, I have. Second, as you can see, the definition is not just threat of severe pain, but other threats as well.

Further, come on. You do criminal defense, you went to law school, you took the bar - don't be disingenuous. threatening someone with an unloaded weapon is still a threat of imminent death, even if pulling the trigger results in no harm. Think about it, back at you.

Does the victim believe he is threatened with imminent harm when he is thrown against a wall? he doesn't know the wall is false, and why would he suspect it? what is the purpose of the exercise if the victim thought he was going to get thrown against a pillow? Obviously, the purpose of these techniques is to present the victim with (at least) the fear of imminent harm so he will talk to avoid it.

Moreover, torture defenders say waterboarding is not torture because it does not cause death or severe pain and suffering. But clearly the victim thinks he is going to die of drowning.

Think about it. If the guy thinks he's at Club Med, what is even the point of the exercise? The whole purpose of these techniques is to convince the person he is in danger of imminent harm. (or to confuse, disorient, etc.) apologists claim the situations are controlled, so there is no real possibility of death or severe pain, but that's besides the point - from the objective view, the victim has no idea of the "safety" precautions, and reasonably fears the technique will cause him death or severe pain. definition met. Ironically, that may actually mean the 182 or 183 waterboard was not torture (at least for threat of death purposes) only because he learned from the first times he would not die. but of course, he had that fear on waterboards 1 through, say 10, which did constitute torture.

And yes, clearly, undoubtedly, and obviously, some of the acts we now have facts about fit the definition. there is no good faith defense alternative interpretation. Summary judgment would be a cake walk.
 

Nerp:

Assuming that none of the methods discussed in the memos inflict severe physical pain, then threatening to perform them does not threaten severe physical pain.

Apart from water boarding, none of the methods discussed in the memos credibly threaten death. The memos assumed that water boarding could be considered a threat of death and then went to the next step of determining whether the evidence gathered during SERE or during the CIA interrogations included observations that water boarding caused prolonged mental harm. No such evidence existed.

Finally, the mere act of keeping someone awake is not a threat of "the administration or application of ... other procedures calculated to disrupt profoundly the senses or personality.

In general, the threat provisions of the torture statute require the defendant to communicate a threat of a future act of torture. For example, the scene toward the end of Braveheart where the English show the William Wallace character the implements that they would use to geld and disembowel him is a threat of a future act of torture. Reports of such threats are conspicuously absent in the memos.
 

The dirty secret OLC and nearly every other attorney here (except for Will Levi) is dancing around is that the torture statute was intentionally kept vague to permit the President flexibility in interrogation.
I don't believe it.

The right role of broad prohibitions is to incent the utmost conservatism in interpretation.

They are like a giant sign that reads to anyone sensible, "Danger Ahead, Proceed with the _utmost_ caution!"
 

Poor dear Bart plainly has an agenda and I doubt that it is motivated by any legal considerations.

On the proper interpretation of the statute under US law, I defer, of course, to those who can speak authoritatively of such matters, among whom I do not include Bart, and I will await with interest judgments of the higher Courts in the USA. Having said that, I believe that the principles of statutory interpretation in US law are largely derived from those
applied in my country and that a Federal Judge ought to have no difficulty in adequately instructing a Jury as to the law in any case which might come before the Court (unless, of course, his name is Jay Bybee).

But the potential domestic penal consequences of the alleged acts are only one part of the equation which the OLC and those they were advising ought to have considered.

The USA had obligations in international law relating to its conduct inside and outside the USA, both in the sovereign states it invaded and in the third countries were it detained or interrogated persons. The third countries, many of which are US allies will also have jurisdiction over acts committed on their territories and they will judge such matters in accordance with their domestic law. Then there are the countries which have participated in operations in alliance with the USA (such as the UK). They have obligations defined, not by US law, but (for example) by UK law and the treaties and obligations incorporated into UK law.

Then there are the countries of origin and residence of the detainees - all of whom have a legitimate interest in what happened to their citizens or to persons under their protection.

All those are matters on which the high officers of state could and ought to have been advised. It does not appear that they were.

Now it may well be that the attitude of the high US officials could well have been: "Sod our allies, what problems they get into is no concern of ours", in which case I trust that the allies were informed of that before their assistance was sought.

As appears from some of what is set out above there are indications that some intelligence services are already thinking twice about what they tell their US counterparts and that does not seem to be beneficial to US national security.

What amuses me is that poor Bart seems to think that the primary targets of any investigation and prosecution will be the quondam lawyers in the OLC. Not so, if this thing has legs, I suspect the targets are going to be the high officials, not the rather pathetic scribblers of the OLC. After all, lawyers have every good reason to be thankful that they do not by and large incur criminal liablity for getting the law wrong. Liability in damages for negligence is bad enough. Here in the UK there is also a real prospect of disciplinary sanction for the provision of inadequate professional services (although I understand the the various US bar associations are relatively toothless). Anyway rather more is required for a finding that one has aided and abetted the felony of others. But there is a case which might be relevant - see Kevin John Heller's post on Opinio Juris Want to Prosecute the Lawyers? Cite Ministries not the Justice
CaseNow it may be that a case can be made that the scribblers were not writing in good faith but in response to requests for a "get out of jail free" card.

More generally, the penny about the implications is starting to drop. See Paul Krugman in the NYT Reclaiming
America's Soul and Gene Robinson in the WaPo Where 'Those Methods' Lead

Even in Bart's own state, two letters published in today's Colorado Springs Gazette both call for investigation of the torture allegations and one of those is from the President of the Colorado Veterans Alliance Gazette Letters.
 

(Foreign judicial interpretations of their law have no place in establishing the meaning of United States criminal law imposing criminal sanctions on our citizens, so I am not going down that rabbit hole.)
-------
Just think about that for a second.

It shows just how abject this opinion is.

Afterall, if a Nation begins to torture, who is going to 'judge them', except other nations? Complete with all the consequences of what that entails, including isolation (less security) and so on.

A complete indifference to how a torture interpretation might be viewed in light of what 'the civilized world' thinks about the matter strikes one as almost depraved...
 

I am confident that a solid majority of the American people do not share the views expressed here, will not shed a single tear for KSM & Co.
=====
humm...let me take a page out of FOX Agitation Channel, who keep talking about us 'getting hit' as if they yearned for it, in order to make a point:

They will care when a captured U.S. Serviceman shows up on CNN being waterboarded ...
 

Bart,

The fact that you do not know that the meaning of torture has been interpreted in deportation cases for years is troubling but also explains why you apparently continue to insist that the Torture Convention is vague and that the work of the OLC was spot on.

Although it is not my job to educate you on the CAT and how it is interpreted in the United States, you may wish to look at such cases as Al-Saher v. I.N.S., 268 F.3d 1143 (holding that beatings over several days can constitute torture); Jean-Pierre v. U.S. Atty. Gen., 500 F.3d 1315 (confining a man to a small crawl space can constitute torture); Tchemkou v. Gonzales,
495 F.3d 785 (one beating and detention under deplorable conditions constitutes torture).

I am not saying these cases cannot be distinguished. Indeed, these are just three recent circuit court decisions that analyze the meaning of "torture." But Bybee and Yoo ignored this whole area of law and did not consult with experts within DHS and DOJ who do this kind of work. Why do you think this is? Are Circuit Court interpretations of the Torture Convention irrelevant? Perhaps when you are trying to justify blatantly illegal conduct.
 

Mourad said...

"The USA had obligations in international law relating to its conduct inside and outside the USA, both in the sovereign states it invaded and in the third countries were it detained or interrogated persons."

International law consisted of obligations countries voluntarily agree to assume to advance their national interests. Under our Constitution, the President and Congress may unilaterally define, suspend or withdraw from treaty obligations.

So far as the Torture Convention is concerned, we agreed to our own more limited definition of torture, Congress implemented that definition into lUS law through the Torture Statute and the President and Congress further defined what was permitted under that statute by directly or tacitly authorizing the CIA coercive Interrogation program.

M: "The third countries, many of which are US allies will also have jurisdiction over acts committed on their territories and they will judge such matters in accordance with their domestic law."

If other countries wish to seize members of the United States government, they will be committing an act of war. Good luck with that.

M: "As appears from some of what is set out above there are indications that some intelligence services are already thinking twice about what they tell their US counterparts and that does not seem to be beneficial to US national security."

Actually, it is quite the opposite. The United States is declining to provide classified intelligence to some of our allies who cannot keep secrets. Of course, if Obama continues to imitate those allies by disclosing our secrets to the enemy, I expect more circumspect allied intelligence agencies to stop supplying us with classified intelligence.
 

Bart says:

"Finally, the mere act of keeping someone awake is not a threat of "the administration or application of ... other procedures calculated to disrupt profoundly the senses or personality."

You cannot possibly serious. First, chaining someone upright to prevent sleep for 96 hours (for most of the prisoners) or more (for a select 3--per Charles reference to the memos), is not "the mere act of keeping someone awake."

Second, what do you think it's trying to accomplish? Make them cranky? You have raised the bar on disingenuousness if you are legitimately trying to argue that extended sleep deprivation is NOT explicitly intended to profoundly disrupt the victim's senses...
 

So far as the Torture Convention is concerned, we agreed to our own more limited definition of torture, Congress implemented that definition into lUS law through the Torture Statute and the President and Congress further defined what was permitted under that statute by directly or tacitly authorizing the CIA coercive Interrogation program.Bart, you are a drunk driving lawyer, not an international human rights lawyer, and this passage shows it.

You are confusing several concepts:

1. Congress can certainly use reservations and understandings to make certain international law obligations not enforceable. And thus, there is a plausible argument that the conduct prohibited by the US Torture Act is narrower than the conduct prohibited by the Convention Against Torture. (It isn't the only construction of what Congress did, but it isn't implausible.)

2. If the President unilaterally withdraws from a treaty, under US law, that withdrawal, whether permissible or impermissible, is not reviewable by the courts as a political question. (Note that Goldwater v. Carter DOES NOT actually say the President can do this-- only that the courts won't stop him if he does.)

3. Congress can also deliberately pass laws in violation of a treaty or repeal laws ostensibly required by a treaty, because treaties, under US law, have no greater status than acts of Congress. However, Congress must clearly manifest its intent to this, and under the Charming Betsy rule, when Congress' intent is not clear, the law will be construed wherever possible so as not to violate the treaty obligation.

Now, as I said, if you want to say that Congress narrowed the scope of prohibited conduct under the Convention Against Torture, that is plausible. But your arguments as to principles 2 and 3 just get everything flat wrong.

First, while the President can WITHDRAW from a treaty, that's not the same thing as saying he can VIOLATE it. The entire point of treaties is to bind the executive branches of each state party-- especially with respect to a torture treaty, which governs conduct that is almost always carried out by an executive branch of government.

Bush never withdrew from the CAT. Quite the contrary, he continued to insist that we were in compliance with it, continued to have his state department file reports on that compliance to the UN, etc.

Rather, he just decided to violate the treaty, under a slightly more sophisticated version of Nixon's "when the President does it, it is not illegal". You'd like to CHARACTERIZE that as a withdrawal from the treaty, but it isn't one.

Similarly, the fact that Pelosi et al. knew of the torture and (perhaps) tacitly approved it is a far cry from Congress passing a law repudiating the country's obligations under the CAT. Indeed, Congress did pass a law dealing with torture during the relevant time period-- the Military Commissions Act-- and it REAFFIRMED Congress' recognition that the CAT is binding and that torture is illegal under US positive law. The machinations of the Congressional leadership in secret meetings do not constitute an act of Congress, let alone an act of Congress that constitutes a "controlling legislative act" in contravention of international law.
 

Bart:

There were no substantive crimes here.

Outside of violatyions of 18 USC § 2340, laws against assault and murder, etc. perhaps not....

... I am talking about giving the Dems a taste of the time honored Dem practice of setting perjury traps....

There's no problem with "perjury traps" if you just say what you believe is true. If Pelosi didn't (while under oath), then by all means prosecute (unless she's privileged under Article I, Section 6).

... Let's start your investigation with turning the painfully obvious liar Pelosi into a felon perjurer.

No. You don't "turn[ her] into a felon perjurer. She is or she isn't. Make your case (which you have not done).

Cheers,
 

Shag from Brookline:

To complete my morning trilogy of Internet surfing, take a look at:

"Why President Obama Should Consider Pardoning those Who Designed, Authorized, and Carried Out the Bush Policy of Abusing Detainees"By MICHAEL C. DORF

I saw that and commented here. Dorf has it wrong, and the bottom line is this:

"... In this sense, if President Obama or Attorney General Holder makes the political judgment that there is no angle to be found in prosecutions, that decision could also be fairly characterized as a matter of principle." -- Michael Dorf

Cheers,
 

The defenders of the OLC torture memos have discovered a new freedom:

FREEDOM FROM ACCOUNTABILITY!

But it only benefits conservatives.
 

Yes, every reasonable person can see that waterboarding someone 183 times in a month is not torture. It's obvious. Same goes for sleep deprivation (in stress positions) for a week ... with 8 hour hiatuses before it's begun again. Or slamming them into walls. All for the purpose of making things so incredibly unbearable that they will "talk". Those damn statutes are just too opaque. We, the people, can figure this out quite easily. Gove us a crack at it.

Cheers,
 

The dirty secret OLC and nearly every other attorney here (except for Will Levi) is dancing around is that the torture statute was intentionally kept vague to permit the President flexibility in interrogation.

OIC. So we ratified the Convention Against Torture with our fingers crossed; with the proviso that we could indeed torture when we needed to. What a nation we are. Let's hope we can get this kerfluffler resolved. Let's put our heads together and see if we can come up with an ultimate and just ... a final ... solution to this conundrum.

Cheers,
 

Arne:

I do not fully agree with the pardon part of Dorf's article at its very end, but thought that his discussion leading up to that was well balanced. But consider Obama pardons of the OLC attorneys, but not of those higher up the Bush/Cheney chain. With Nixon and Watergate, many of Nixon's men went to jail and Nixon was pardoned by Ford "to save the country." By pardoning the OLC attorneys, they may then be required to testify before Congress, under oath, permitting going up the ladder, contra Watergate. This possibility may account for Cheney's concerns.
 

When you're right, you're right:

[Bart]: Finally, the mere act of keeping someone awake is not a threat of "the administration or application of ... other procedures calculated to disrupt profoundly the senses or personality".

Yes. It's not a "threat" of doing such procedures, it's actually doing such procedures.

Cheers,
 

I've already made this point above (and "Bart" ignored it) but:

[T]he President and [allegedly eight members of] Congress further defined what was permitted under that statute by directly or tacitly authorizing the CIA coercive Interrogation program.This from a person who is adamantly against "legislating from the bench"..... Go figure.

But then again, intellectual consistency (and in fact intellect) was never "Bart"'s strong suit.

Cheers.
 

If other countries wish to seize members of the United States government, they will be committing an act of war. Good luck with that.
=====

You are aware, of course, that at least one of them already has! This is not a paper experiment.

How are pissed-off Italians (of all people) working to keep us safe, one wonders?

Italy seeks to arrest CIA operativesWhat's more, don't you think that Bush-Cheney ought to have told the electorate that they withdrew from treaty obligations, if that is more-or-less what their 'torture decisions' amounted to?

Seriously, ex post announcements to the gang of four in the Congress are hardly adequate, especially given that Committee council was excluded and that it's near impossible to craft a motion in the House, given that the substance of the Bill would have been classified and the non-torture party in the minority. The idea that Bush-Cheney worked with Congress to fashion a new policy is bogus. They worked the system to TELL Congress.
 

I don't understand why Pelosi et. al. could not say what they were told, given the Speech and Debate Clause. Mike Gravel, with a Supreme Court ruling reaffirming the point, used that to leak the (secret) Pentagon Papers.
 

From Dorf:

"(mostly on the political left)"

What is it about wingnuts that the sine quo non is always politics? That it is the ultimate appeal of self-annointed "patriots" to obscrue all else by whining that prosecutions of wingnut criminals is "politics"?

Is it psyhchological -- therefore ethical -- immaturity? Is it that democracy, liberty, freedom, and the like are actually only jokes to them?

By contrast:

"Justice and law are to be ABOVE politics." -- John Adams.
 

"Charles"

"Because SERE training and medical studies are not necessarily "severe" either."

I didn't here the US military personnel who underwent SERE training utter any exceptions, such as "not necessarily," in their testimony to Congress about, as example, waterboarding being UNEQUIVOCALLY torture.

As ever, it is unequivocally obvious that the central qaulification to be a far-right lunatic fringer/wingnut is dishonesty in all things, beginning with intellectual dishonesty. And the effort to hide that ethical and moral bankruptcy behind the self-annointed designation "patriot".

Tell us, Charles: How on earth do you expect your dishonesty, your lying, to convince those who see right through them to the America-hating slug you are?

And tell, us, Charles: have you an arsenal of weapons to righteously protect yourself against criminals while simultaneously defending their foremost source of guns, the "gun show loophole"?
 

"Bart" DePalma:

"Nerp:

"Clearly?

"If the act itself does not inflict severe pain, how can the lesser of merely threatening that act inflict serve pain?

"Think about it."

Threadbare to the degree that all the threads are gone.

You're a fraud as a lawyer: you can't even make your deceits appear credible, let alone true.

I'd ask that you THINK about that but it would be a waste of time, because for you to actually THINK would threaten to decimate your characterological intellectual dishonesty.
 

Milan said...

BD: The fact that you do not know that the meaning of torture has been interpreted in deportation cases for years is troubling but also explains why you apparently continue to insist that the Torture Convention is vague and that the work of the OLC was spot on.

Mian: Although it is not my job to educate you on the CAT and how it is interpreted in the United States, you may wish to look at such cases as Al-Saher v. I.N.S., 268 F.3d 1143 (holding that beatings over several days can constitute torture); Jean-Pierre v. U.S. Atty. Gen., 500 F.3d 1315 (confining a man to a small crawl space can constitute torture); Tchemkou v. Gonzales,
495 F.3d 785 (one beating and detention under deplorable conditions constitutes torture).

I am not saying these cases cannot be distinguished. Indeed, these are just three recent circuit court decisions that analyze the meaning of "torture." But Bybee and Yoo ignored this whole area of law and did not consult with experts within DHS and DOJ who do this kind of work.

Thank you for the cites. You are correct to qualify your offering by admitting that these cases are easily distinguished.

The purpose of these memorandums was to answer the specific question of whether the described CIA/SERE techniques fit the definition of torture, not to offer a treatise on the subject. Thus, your cases would only be relevant if they either provided some material interpretation of the torture definition or decided whether acts similar to the CIA techniques qualified as torture under this definition. They do neither.

In Al-Saher, the petitioner was physically beaten and burned with cigarettes for a month and then 8-10 days. Without interpreting the definition the Circuit Court simply assumed that beatings and burnings for these lengths of time were meant to inflict severe pain. The CIA techniques at issue are nothing like the acts in this case.

In Jean-Pierre, the petitioner testified without dispute that he would be beaten with metal rods, confined for weeks or months on end in a tiny crawl space without food. and boxed on the ears. The Circuit did not rule whether this was torture, but rather remanded the case back to immigration. The court did note that similar behavior in prior cases has been found to be torture. However, none of this behavior is remotely similar to the CIA techniques except perhaps confinement in a small space. However, the CIA confinement technique lasts a far shorter time and does not involve starving the prisoner.

In Tchemkou, the petitioner testified that the police had beaten her with batons and broken out here teeth, dragged her through the woods, beat her with fists and kicks and ripped off a piece of her ear.. Once again, these facts bear no resemblance to the CIA interrogation methods. Interestingly, Footnote 5 briefly discusses the case of Dandan v. Ashcroft, 339 F.3d 567 (7th Cir. 2003), where a beating that "only" caused swelling of the face was not torture. In comparison, the CIA technique only allows CIA to swipe the prisoner with open fingers on the face or shove the prisoner on the torso in a manner that will not cause any physical injury.

Actually, if OLC wanted to make more expansive arguments in their memorandum, the attorneys could have used these cases to distinguish real torture from the CIA techniques. These cases offer fact patterns that the normal person would consider to be torture - beating the prisoner to a pulp. CIA techniques are not even in the same universe as these beatings.
 

"Charles

"That's right, Joe. You and Smith wouldn't "torture" even if it would prevent another 9/11."

Torture wasn't necessary to prevent 9/11: contact with the reality of clear warning -- and competence -- would have been sufficient.

But that didn't occur because it was paramount that a pretext -- any pretext -- was needed in order to illegally invade Iraq and take out a competing torturer.
 

"Bartbuster:

That's right, Joe. You and Smith wouldn't "torture" even if it would prevent another 9/11.

# posted by Charles : 11:15 AM"They wouldn't, but I would. I'd start with you. How long do you think it would take me to get you to admit that you're a terrorist?"

No need to torture him: he's readily identifiable as such by simply looking his posts in the eye.
 

Bart, I've written several articles about Convention Against Torture refouler cases. I've also litigated Torture Victim Protection Act and Section 1350 cases. What is striking about the torture memos is that the OLC lawyers cited to very few of the relevant precedents. (They did cite to Hilao v. Marcos. But not much else.)

The fact of the matter is that contrary to the made up supposition of you and some conservative lawyers that torture has never been defined, there's a whole bevy of cases about what does and doesn't constitute torture, and it's a lot more detailed than your simplistic analysis on the issue. A lawyer attempting in good faith to determine whether the "enhanced interrogation" amounted to torture would provide a detailed discussion of this caselaw and would capture the various relevant distinctions.

OLC never did that.
 

"Reading comprehension failure" (n phr):

[Milan]: I am not saying these cases cannot be distinguished....

[Bart]: Thank you for the cites. You are correct to qualify your offering by admitting that these cases are easily distinguished.

See also: "dishonesty"

Q.E.D.

I'd note that "Bart" can't provide any cites to support his claim, but Milan provided three cases that arguably refute "Bart"'s claim. At best "Bart" can argue that these cases can be distinguished, but any court would do quite well to look at these cases as at least persuasive authority (as well as what international and foreign courts have said) as a guide as to what the statute means (and should do so). To argue that what these venues have said is not applicable is the job of one such as "Bart", and to do that he'd have to argue persuasively why they, being pretty much the sole authority of any kind, should be ignored. And for that he's going to have to proffer more than he has done here (which is to claim falsely that there is no authority whatsoever).

Cheers,
 

In Tchemkou, the petitioner testified that the police had beaten her with batons and broken out here teeth, dragged her through the woods, beat her with fists and kicks and ripped off a piece of her ear.. Once again, these facts bear no resemblance to the CIA interrogation methods [scroll down to picture for a visual explanation].Cheers,
 

"Dilan

"Bart, you are a drunk driving lawyer, . . ."

BINGO!

And he refused to take the breathalizer under a claim of sovereign immunity.
 

JNagarya:

Look up the definition of "hypothetical". Even if it was the only way to prevent ANOTHER 9/11, they wouldn't "torture" a known terrorist. Bart"buster" OTOH would gladly torture a non-terrorist just because he disagrees with my politics. See the difference?
 

Garth:

I would agree that drowning someone is torture.
 

"Charles" --

"JNagarya:

"Look up the definition of "hypothetical"."

When you assert you are hypothecizing -- instead of merely bullshitting -- I'll do that. Not until then.

"Even if it was the only way to prevent ANOTHER 9/11, they wouldn't "torture" a known terrorist."

Right: but, as everyone knows, they would and did torture ALLEGED -- "hypothetical" -- "terrorists" without FIRST ADJUDICATING them as being both "terrorist" and GUILTY of some -- non-hypothetical -- crime.

"Bart"buster" OTOH would gladly torture a non-terrorist just because he disagrees with my politics. See the difference?"

Substantiate that hypothetical.

As for perceivable differences: that between, n one hand, truth, and on the other, your constant non-hypothetical LYING against your country. Hitler and his ilk are spinning in their graves in despair of never having the opportunity to meet you, their kindred spirit.
 

"Charles":

"Garth:

"I would agree that drowning someone is torture."

Waterboarding is drowning -- so testified to Congress, as example, US military personnel who underwent it.

Which is one reaon it is defined as being a form of torture by the civilized.
 

Try looking up the shorter word "if" then.
 

just because he disagrees with my politics.

# posted by Charles : 7:04 PM

I wouldn't do it just because of your politics. Once I got you to admit that you're a terrorist, I would torture you because we're fighting a war on terror, and I'd be obligated to get all the intel from you that I possibly can.
 

Bartbuster:

[to HWSNBN2]: I wouldn't do it just because of your politics. Once I got you to admit that you're a terrorist, I would torture you because we're fighting a war on terror, and I'd be obligated to get all the intel from you that I possibly can.

That's an oxymoron, so to speak.

That said, enough of even bothering to reply to him ... as we can all see that it doesn't result in any "intelligence".

Cheers,
 

LOL!
 

That's an oxymoron, so to speak.


# posted by Arne Langsetmo : 8:05 PM

I admit that I would be fishing in a very shallow pond. I'm sure it would take no more than 100 waterboardings to empty it.
 

This comment has been removed by the author.
 

http://www.washingtonpost.com/wp-srv/nation/pdf/JPRA-Memo_042409.pdf?sid=ST2009042403231

Here is the July 2002 JPRA memo to then DOD General Counsel William Haynes calling the things being proposed to done "torture." These are the SERE people calling what Haynes has been talking with them about doing for "exploitation" of detainees torture. This is BEFORE the August 1, 2002 memos that try to redefine all this. It's torture folks and anyone who says something different just can not handle the truth.
Best,
Ben
 

Benjamin Davis:

So, whomever "tortured" Garth (see above) should be prosecuted?
 

Read the memo. You guys who are focused on training experiences with SERE are just ridiculous. That training is to learn to resist torture. If you guys can not tell the difference between training of your own soldiers and torturing your enemies you are hopelessly obtuse. Best, Ben
 

There is simply no point in debating whether waterboarding is "torture."

It's an absurd debate. It has been viewed as torture for centuries.

If our own soldiers were waterboarded by others (not our own trainers) we would be screaming bloody hell.

We would be screaming bloody hell about the evil torturers if the bad guys did it even one time to our soldiers, never mind 183 times.

All those folks debating the niceties of whether waterboarding is torture--Bart and company--would undoubtedly not take this line if it they were waterboarded by our enemy.

Time to get a bit of perspective on this issue.

The discussion would be more honest and relevant if we stopped debating whether this was torture and instead focused on their reasons for thinking the torture was necessary.

Brian
 

Well, sure, Professor. If we move right past whether there were any legitimate reasons, then Bart"buster" could proceed directly to torture Yoo himself.
 

Charles,

I don't understand your comment or see how it is responsive to my comment.

Never mind that. Perhaps we can make a bit of progress if you and Bart take a look at the Senate Report on detainee treatment.

One of the things that stands out about the report is that EVERY single branch of the military vociferously objected to the proposed interrogation techniques on the specific groups that they are torture, violating U.S. law and common article three of the Geneva Convention.

You will see the same point spelled out in detail in a memo from military lawyers sent to Haynes and Rumsfeld in 2002 (it's on the Washington Post site).

Bart is a veteran (you might be as well), so I assume he will not lightly dismiss the universal opposition from every branch of the military.

Brian
 

Bart is a veteran (you might be as well), so I assume he will not lightly dismiss the universal opposition from every branch of the military.

Brian

# posted by Brian Tamanaha : 10:46 PM

You underestimate his blind devotion to the GOP.
 

Even the U.S. Coast Guard objected?!
 

"Charles:

"Well, sure, Professor. If we move right past whether there were any legitimate reasons, then Bart"buster" could proceed directly to torture Yoo himself."

If there were no legitimate reasons for the Japanese, the Nazis, and Saddam Hussein to commit the crime of torture, then there is no legitimate reason for the Bushit criminal enterprise, in the name of the US, to commit the crime of torture as means to reduce the incidence of torture.

Where's Osama bin Laden, punk? There's your measure of legitimacy, competence, and give-a-damn about the lives of US citizens as concerns your heroic Bushit criminal enterprise.

The reality is -- as Benjamin Davis noted -- that Haynes, et al., KNEW they were doing torture, and KNEW they were lying about it. And they knew all that BEFORE they committed atrocities against the Constitution and rule of law.
 

Brian Tamanaha:

"Bart is a veteran (you might be as well), so I assume he will not lightly dismiss the universal opposition from every branch of the military."

Bart is a liar against everything this country stands for, beginning with Constitution and rule of law. He has defended NOTHING but criminality and treason. So I don't for a split second believe he's either a lawyer or a veteran -- except in the latter instance as a thorughly practiced and yet wholly transparent liar.

The same goes for "Charles," who claims to have quit the ABA, but couldn't reason his way out of an open field, in broad daylight, with compass, maps, and a gaggle of guides.
 

The purpose of these memorandums was to answer the specific question of whether the described CIA/SERE techniques fit the definition of torture, not to offer a treatise on the subject.
=====
Is there no room for the OLC to reject and reformulate the questions put to it, especially if it thinks they are poorly formed, from a policy perspective or otherwise?

For instance, we know that Ashcroft's initial gut-reaction was to reject Tenet's arcane formulation(s), suggesting aloud that the fine details were not the appropriate way to cast the question(s).

Later, of course, the "golden shield" was given, but at least someone at the table said something.
 

My early morning Internet surfing leads to the WaPo today and staff writer Karl Vick's "Amid Outcry on Memo, Signer's Private Regret - Friends Say Judge Wasn't Proud of Outcome." Interestingly, the piece point out that Bybee was not looking for an OLC job when he was interviewed by Gonzales; rather, he was exploring possible appointment to a 9th Circuit seat that might be opening. Since there was no opening, Gonzales asked if Bybee would be interested in OLC. When the opening came about, guess who got the appointment? And in the interim, guess who signed memos/opinions on torture at OLC?
 

For part 2 of my morning surfing, see the same WaPo today for its lead editorial "Eyes Wide Shut - The Bush administration repeatedly ignored warnings about its detainee interrogation policies." And all this may be merely the tip of the iceberg, the rest to be revealed as all this continues to heat up. There may be a lot of "Deep Throats" surfacing.
 

For part 3 of my morning surfing, and for balance (actually imbalance), take a look at Porter J. Goss' OpEd in this same WaPo today titled "Security Before Politics." Goss somewhat puts the spotlight on Congress and I expect there will be responses. Certainly Goss displayed his gossamer wings during his short stint at CIA.
 

per Goss' op-ed.

"our nation's intelligence services had no higher priority than stopping al-Qaeda"

Our government has a "higher priority," namely, the ends found in the Preamble of the Constitution. Not that "enhanced interrogation techniques" are felt to be necessary by many tasked with "stopped al-Qaeda."

Pelosi, one of the four he references, remembers things differently. Again, per Speech and Debate Clause, I don't think the secrecy was compelled. And, given the op-ed avoids the word "torture" and performs other evasions, I'm not inclined to trust it too much.

But, even if Goss is right, the fact four members of Congress aided breaking the law & now, like Bybee are upset about doing so in some fashion, doesn't erase what the law is.
 

Brian:

1) My concern is national security, not playing cheerleader for a political party, unlike those calling for selective witch hunts limited to the GOP. I have repeatedly posted my support for Obama decisions to exercise these same powers, in stark contrast to the selective outrage only directed at Bush exercise of these powers here.

2) I would protest the use of any coercive technique against our soldiers privileged under the GCs. Al Qaeda observe no laws of war and have voluntarily forfeited GC privilege. If our soldiers ever engage in similar terrorism, they to would be legally subject to CIA interrogation techniques. Granting terrorists GC privileges rewards their terror.
 

Little Lisa's bro, at this late stage, attempts to give the FAUX Network impression of being "fair and balanced" when it comes to Obama. But redemption is not available for little Lisa's bro as the evidence continues to snowball on torture. Little Lisa's bro and his ilk provide reminders of Nixon's supporters before the crash. Will any of the torture policies' usual suspects fall on their swords for Bush/Cheney? Let's take a look at the photos soon to be released.
 

unlike those calling for selective witch hunts limited to the GOP.... in stark contrast to the selective outrage only directed at Bush exercise of these powers here.Bart, you're full of excrement. You know damn well, or would if your faculties were sound, that the outrage here is against the acts. Bush and his gang just happened to initiate them, any Democrats who knowingly aided and abetted him are fully culpable in our eyes. That's my view and I'm confident it is shared by virtually everyone here.
 

Charles said:

Maybe we can finally get all 43 pages of that "classified" Red Cross report that Danner cherry picked from to start this snowball rolling too?

The Red Cross released their report to the Bush administration. If it is “classified”, it is because the the Bush administration deemed it as such. Obviously, they would have done that only to prevent embarrassment or public outrage, since we know they have no sense of shame.

Furthermore, the report has be available to the general public since April 6, when the NY Times Review of Books posted the complete report: (http://www.nybooks.com/icrc-report.pdf).
 

Thanks, Hank. I will take a look at it.
 

Bart,

Are you really arguing that the only thing that causes you pause with regards to waterboarding and other acts of torture is whether someone is a signatory to the Geneva Conventions? That is a startling shallow view of what is right/wrong, moral, etc.
 

Bart said: I would protest the use of any coercive technique against our soldiers privileged under the GCs. Al Qaeda observe no laws of war and have voluntarily forfeited GC privilege. If our soldiers ever engage in similar terrorism, they to would be legally subject to CIA interrogation techniques. Granting terrorists GC privileges rewards their terror.-

So the GC aren't human rights in your opinion. they are rights for certain humans. do I have that right? I obviously disagree on a level that I couldn't possibly intimate, but whatever

I'm more interested in knowing if you actually think a human can have GC rights legally removed simply because they are accused of affiliation with Al Qaeda. Can they? you really require zero evidence? that is what you are arguing
 

"My concern is national security, not playing cheerleader for a political party, unlike those calling for selective witch hunts limited to the GOP".

Who calls for "selective" investigation and prosecution of those who may have ordered or committed torture? The above quote is your partisan characterization of what is being called for: the investigation and criminal prosecution of those who planned, ordered, approved or committed torture. If it is found that half the Democrats in Congress are complicit, prosecute them! I have no qualms about seeing Jay Rockefeller sharing a cell with Dick Cheney, or Nancy Pelosi chained by the ankle to Condi Rice on a road-clearing prison detail.

Obama himself is complicit in war crimes and he should be subject to close scrutiny as well. I think few in Washington, of either party, have acquitted themselves well or honorably in these past years, and even a majority of those who don't belong in prison at the very least don't belong in Washington.
 

Bart:

So if Al Qaeda captures a CIA operative (i.e., not a uniformed combatant) and waterboards him, that's OK?
 

[Bart said]: I would protest the use of any coercive technique against our soldiers privileged under the GCs. Al Qaeda observe no laws of war and have voluntarily forfeited GC privilege.

BArt believes in group guilt. Even more so when we get to "decide" who's actually in that group.

Cheers,
 

First Drunk Driving Conviction
The first time you are arrested in the State of Texas for drunk driving you will receive a fine up to $2,000. You will also be confined to jail for no less than 72 hours and no more than 180 days. Your drivers license will be suspended for no less than 90 days and no more than 1 year. You may also be ordered to install an ignition interlock device on the vehicle at your own expense.

Second Drunk Driving Conviction
The second time you are arrested and convicted of a
DWI in Texas you will be fined up to $4,000. You will also serve a minimum of 30 days in jail up to 1 year. Your drivers license will be suspended for a minimum of 6 months or up to 2 years. You may also be ordered to install an ignition interlock device on the vehicle at your own expense.

Third Drunk Driving Conviction
The 3rd conviction for a DWI in Texas is considered a 3rd degree felony. You will be fined up to $10,000 and serve no less than 2 years or up to 10 years in the penitentiary. Your drivers license will also be suspended up to 2 years. You may also be ordered to install an ignition interlock device on the vehicle at your own expense.
The State of Texas prohibits the operation of a motor vehicle by drivers with a .08 percent or above blood alcohol concentration (BAC). The .08 limit is used across the United States as the benchmark for the "impaired" driver. Texas has lower limits in place for commercial drivers (.04) and for drivers under the age of 21 (.02). The Texas DWI law also makes it illegal to drive while under the influence of controlled substances such as marijuana, cocaine, inhalants and other intoxicants
 

This comment has been removed by the author.
 

mattski said...

BD: Unlike those calling for selective witch hunts limited to the GOP.... in stark contrast to the selective outrage only directed at Bush exercise of these powers here.

Bart, you're full of excrement. You know damn well, or would if your faculties were sound, that the outrage here is against the acts. Bush and his gang just happened to initiate them, any Democrats who knowingly aided and abetted him are fully culpable in our eyes. That's my view and I'm confident it is shared by virtually everyone here.
Really? Then, I am sure everyone here will agree to start an investigation of this matter with placing under oath every single Dem who attended the 30 CIA briefing and then ask them what they knew and when they knew it, follow that up with testimony by the CIA briefers and then refer the matter for indictments to DoJ for the inevitable CYA perjuries and conspiracy to commit "torture?"

Let's see a show of posts.

When pigs flay over a frozen hell.

mclamb6 said...

Bart, Are you really arguing that the only thing that causes you pause with regards to waterboarding and other acts of torture is whether someone is a signatory to the Geneva Conventions?
As a matter of law, yes. This is not a small point. GIC privileges are meant to encourage compliance with the rule of law and an abandonment of war crimes like terrorism. Rewarding good behavior and punishing bad behavior is vital.

As a matter of policy, if I were President, I would start with standard interrogation techniques with all prisoners. If standard interrogation was not producing timely and actionable intelligence from high value unlawful enemy officers, then I would use coercive techniques. To me, the lives saved offset any moral qualms about imposing discomfort on a terrorist.

Arne Langsetmo said...

Bart believes in group guilt. Even more so when we get to "decide" who's actually in that group.
Under the laws of war, including the GCs, your status is determined by the nation and/or military to which you belong.

Joshua Noyes said...

I'm more interested in knowing if you actually think a human can have GC rights legally removed simply because they are accused of affiliation with Al Qaeda. Can they? you really require zero evidence? that is what you are arguing
The GC's require a simple battlefield status hearing for applying GC privileges. We have gone far, far beyond that requirement with al Qaeda and the Taliban.

Dilan said...

Bart: So if Al Qaeda captures a CIA operative (i.e., not a uniformed combatant) and waterboards him, that's OK?
Yes. Spies do not enjoy POW privileges. In reality, al Qaeda would torture the CIA agent to death.
 

"Bart":

Then, I am sure everyone here will agree to start an investigation of this matter with placing under oath every single Dem who attended the 30 CIA briefing and then ask them what they knew and when they knew it, follow that up with testimony by the CIA briefers and then refer the matter for indictments to DoJ for the inevitable CYA perjuries and conspiracy to commit "torture?"

You're assuming the two accounts will differ. OTOH, mu Magic Eight-Ball says ... ummm, wait for it to float up ... "Maybe". Until then, "Bart"'s engaging in more of what he's doing below:

[Arne Langsetmo]: Bart believes in group guilt. Even more so when we get to "decide" who's actually in that group.

["Bart"]: Under the laws of war, including the GCs, your status is determined by the nation and/or military to which you belong.

Oh. So Saudi citizens should be treated like any Saudi military? Interesting. When will we bomb Riyadh?

But I'd note that this exemplifies my claim above: It is the U.S. that is 'determining' which "military" any detainee belongs to (not to mention, if they're 'Taliban', theyr'e arguably covered by the GCs as even the Dubya maladministration's flacks admitted). If we use nationality (the only fact not in dispute in most cases), quite different results obtain....

Cheers,
 

re the definition of torture. I noticed Bart keeps adverting to severe pain and says things like waterboarding don't cause it. But the statute also mentions "mental" pain or "suffering". So it doesn't have to cause you a ton of physical pain to be torture, it just has to cause severe mental suffering.

After reading Hitchens, you don't think waterboarding a guy 183 times in a month probably caused him pretty severe mental suffering?

It seems pretty clear that, unless you just assume that all these terrorists are a bunch of pussies, any "coercive" method you're using that has any hope of getting them to betray the principles and the cause that they so fanatically support, has to -- by definition -- cause pretty severe physical and/or mental pain and suffering or else it wouldn't work. Right?

It's precisely BECAUSE it causes severe pain and suffering that we even have any hope of getting the information out of them at all by doing these things to them.
 

Let's see a show of posts. When pigs flay over a frozen hell.

If it wasn't for biased thoughts, Bart, you wouldn't have no thoughts at all.
 

Is that a double, or TRIPLE, negative?
 

Bart DePalma said:

I am sure everyone here will agree to start an investigation of this matter with placing under oath every single Dem who attended the 30 CIA briefing and then ask them what they knew and when they knew it, follow that up with testimony by the CIA briefers and then refer the matter for indictments to DoJ for the inevitable CYA perjuries and conspiracy to commit "torture?"

Is that how you defend your DWI clients? Do you tell the prosecutor, judge, and jury that until they are willing to go after the bartender who sold your client drinks, the friends who saw him stagger out to his car without stopping him, the liquor industry for manufacturing intoxicating beverages, and the parents who raised an alcoholic, that they should just shut the hell up and leave your client alone?

That must make you a legend in Colorado court rooms and garner you a lot of convictions, too. But wait -- aren’t you going after acquittals?
 

"That must make you a legend in Colorado court rooms ...."

My trusty-dusty Webster's New World Dictionary:

"legend 2 a) a notable person whose deeds or exploits are much talked about in his or her own time b) the stories told about the exploits of such a person"

What do we at this Blog actually know about little Lisa's bro that might make him a legend in Colorado courts? Can a DUI legal specialist become such a legend in any state?

Can little Lisa's bro even be considered a legend at this Blog? Or even on his own blog? All he does all the time is provide the vasoline as an enabler for Bush/Cheney. Perhaps he's at most a slippery slope legend.
 

This comment has been removed by the author.
 

Can little Lisa's bro even be considered a legend at this Blog?

He is a legend in his own mind.
 

Bart said: The GC's require a simple battlefield status hearing for applying GC privileges. We have gone far, far beyond that requirement with al Qaeda and the Taliban.-

sure. everyone in our custody in the "GWOT" has been verified al Qaeda and/or Taliban by more than someone getting paid to point a finger

yikes
 

You can make more friends in two months by becoming interested in other people than you can in two years by trying to get other people interested in you.
Agen Judi Online Terpercaya